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The U.S. Occupational Safety and Health Administration (“OSHA”) recently issued updated Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace (the “Guidance”) for employers and workers outside of the healthcare industry.¹ Although this updated Guidance does not establish any legal requirements, it is best practice to follow OSHA’s recommendations, as a failure to follow these recommendations could expose employers to liability or, at a minimum, invite potential claims.

First, the Guidance limits its focus to protecting unvaccinated or otherwise at-risk workers in their workplaces. Importantly, with regard to vaccinated workers who are not otherwise at-risk, and workplaces where all employees are fully vaccinated, the Guidance removes recommended employer protections. However, notwithstanding the Guidance, it may be prudent for employers to continue to follow the OSHA recommendations below, as employers may not know the vaccination or “otherwise at-risk” status of their employees.

With regard to unvaccinated or otherwise at-risk employees, OSHA’s recommendations include the following, many of which employers have already implemented:

• Grant paid time off for employees to get vaccinated
• Instruct all workers who are infected or have COVID-19 symptoms, and unvaccinated workers who have had close contact with someone who tested positive for COVID-19, to stay home from work
• Implement (or continue) physical distancing measures in communal work areas
• Provide workers with face coverings or surgical masks
• Educate and train workers on COVID-19 policies and procedures
• Suggest that unvaccinated customers, visitors, or guests wear face coverings
• Maintain ventilation systems
• Perform routine cleaning and disinfection
• Record and report COVID-19 infections and deaths (under mandatory OSHA reporting rules)
• Implement protections from retaliation for workers who voice concerns about COVID-19-related hazards

The Guidance also recommends additional protections for workplaces deemed “higher-risk” – including high volume retail and grocery settings. For these high-risk workplaces, OSHA’s additional recommendations include:

• Staggering break times, arrival times, and departure times
• Provide visual cues (floor markings, signs, etc.) as a reminder to maintain physical distancing
• Move electronic payment terminal/credit card reader further away from worker to ensure physical distancing
• Shift primary stocking activities to off-peak or after hours when possible

If you have any questions regarding this Guidance, please contact the attorney you work with at Shulman Rogers or feel free to contact an employment and labor group attorney at the firm.

1 For employers and workers within the healthcare industry, OSHA issued an emergency temporary standard that sets certain requirements for those workplaces. You may access that standard HERE. 

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The contents of this Alert are for informational purposes only and do not constitute legal advice. If you have any questions about this Alert, please contact the Shulman Rogers attorney with whom you regularly work or a member of the Shulman Rogers Employment and Labor Law Group.